On 9 June 2011 Mr Justice Tugendhat handed down judgment in the case of Goodwin v News Group Newspapers (No.3) ([2011] EWHC 1437 (QB)).  This is the latest decision relating to the privacy injunction originally obtained on 1 March 2011 by Sir Fred Goodwin to prevent the publication of stories about an alleged affair.  A public judgment was given at the time in anonymised form (MNB v News Group Newspapers [2011] EWHC 528 (QB)).  On 19 May 2011, following a question in the House of Lords which identified him and the information in issue, Sir Fred Goodwin agreed to the removal of his anonymity (see [2011] EWHC 1309 (QB)).

On 1 June 2011 the defendant, News Group Newspapers Ltd (“NGN”), applied to vary the interim injunction, to permit it to identify the woman with whom he had had an affair while he was Chief Executive of the Royal Bank of Scotland (“RBS”).  She was represented as an interested party and was referred to by the initials “VBN”. NGN did not seek to report sexual or salacious details about the relationship but, in particular, sought to publish VBN’s name and job description at RBS.   The basis of the application was that there was a “public interest” in the disclosure of the information.

Judgment

The Judge began with a detailed analysis of the history of the ligation, the application, the evidence.  In the course of this discussion he noted that four different public interest arguments had been advanced at various times by NGN:

  • That VBN was involved in determining his severance package when he left RBS. This was abandoned before the first hearing [5-6].
  • That the affair might have distracted Sir Fred Goodwin’s attention from the business affairs of RBS at the time which was critical to the disastrous takeover. This was abandoned on 4 March 2011 [12] and [17].
  • That a relationship between Sir Fred Goodwin and a work colleague would be a serious failure of corporate governance and might be in breach of the RBS Group Code of Conduct on Integrity Matters [28].  This argument was unsuccessfully pursued at the hearing [134].
  • That VBN had been promoted while Sir Fred Goodwin was Chief Executive.  This was abandoned on 1 June 2011 [35].

The Judge then set out the applicable law.  He began with a largely uncontroversial summary of privacy law in eight propositions [62].   He then went on to suggest that (more controversially)

“In the law of privacy there has been some recognition … of the concept of a public figure, defined as those who exercise public or official functions” [64]

The Judge began his discussion of the issues by considering the notion of a “reasonable expectation of privacy”.  Distinguishes two “core components” of the rights to privacy

“The right to respect for private life embraces more than one concept. Dr Moreham summarises what she calls the two core components of the rights to privacy: “unwanted access to private information and unwanted access to [or intrusion into] one’s … personal space” (see Law of Privacy and the Media (2nd edn, 2011, Warby, Moreham and Christie eds) paras 2.07, 2.08, 2.16 and 12.71). I shall refer to the two components of the right as “confidentiality” and “intrusion” [85].

He then went on to consider the case from the point of view of both “confidentiality” and “intrusion”.  From the former perspective, he addressed the vexed issue of whether the fact of a sexual relationship was private. This issue was considered at length in Lord Browne of Madingley v Associated Newspapers Ltd [2008] QB 103.  Eady J at first instance held that the fact of Lord Browne’s relationship was not private but the Court of Appeal disagreed (but nevertheless upheld public interest rulings which required the parties to be identified).

The Judge accepted that the question as to whether the bare fact of a relationship was private depended on the circumstances of the case [93].  He suggested that, some relationships, like that of Romeo and Juliet had to be confidential for fear of parental reaction [94] but that in general, “parties to a relationship are proud, or at least content, to disclose the relationship” [97].  He went on to hold that, on the evidence, he could not be satisfied that “Sir Fred Goodwin and VBN are likely to establish that they have a reasonable expectation of privacy in respect of the bare fact of their relationship” [100]

Furthermore there was “one fact” which presented an obstacle to such an expectation, namely, the fact that Sir Fred Goodwin was the Chief Executive of the company for which VBN worked [101].    The Judge gave two reasons why this was an “obstacle” which are worth quoting in full:

“First, it is obvious that if an employee has a sexual relationship with a more senior person in the company there are any number of possible misunderstandings and grievances (whether well found or unfounded) that can arise if the fact of the relationship is not known, at least to the work colleagues of the more junior of the two partners to the relationship. Colleagues of the junior partner who speak candidly in her presence (whether as whistle blowers or not) about the senior partner without knowing of the relationship could reasonably feel that they had been trapped or misled, if and when the relationship comes to light. And sooner or later the relationship is likely to come to light, as has the relationship in the present case. There are few things that people are more sensitive to than signs that two other people are in a relationship. It is rarely realistic for partners in a relationship to expect that the bare fact of their relationship will remain confidential between the two of them for a long or indefinite period [102]

Second, the extent to which men in positions of power benefit from that power in forming relationships with sexual partners who are less senior within the same organisation is also a matter which is of concern to an audience much wider than the work colleagues of either partner in the relationship. In the present case Sir Fred Goodwin had a reputation as an exceptionally forceful businessman. And he was Chief Executive of one the largest publicly quoted companies in the United Kingdom, doing business on a global scale. Whatever limits there may be to the legal concept of a public figure, or of a person carrying out official functions, in my judgment Sir Fred Goodwin came within the definition. This distinguishes him from sportsmen and celebrities in the world of entertainment, who do not come within that definition. But even in the case of sportsmen, there may be a public interest if the sexual relationship gives rise to conflicts with professional interest or duties, for example to his team” [103]

Even so, the Judge accepted that this was not the end of the matter: the question was whether there was a reasonable expectation of privacy such that the court should prohibit the disclosure of the name and work position of VBN in the press [106].  He held that there was not – on the basis that the publication of a name would make the reporting of the case more interesting from a journalistic perspective [109-110].

The Judge then went on to consider the privacy argument from the perspective of “intrusion”, noting previous cases in which NGN itself had been criticised for intrusion.  He accepted that the fears of intrusion by NGN were well founded [118] and went on to hold that

“publication in The Sun (or any other print or broadcast medium) of VBN’s name would be a significant intrusion into her private and family life from which she is entitled to be protected (as she is likely to establish at trial). And I am satisfied that she is likely to establish that the interference with NGN’s Art 10 right which would be involved in prohibiting publication of her name is necessary and proportionate for the protection of that right of hers”  [120].

The position was, however, different in relation to VBN’s “job description”  – although this would lead many people to identify her and would be an intrusion “the information about her job description is an important feature of the story”.  As a result, the Judge was not satisfied that she would be likely to prevent its publication [121].

The Judge noted that VBN’s name  could have been published on the internet but that this produced intrusion which was different in degree that from caused by the print and broadcast media [125].   In illustrating why it could be appropriate for the court to anonymise a party whose name can be readily discovered he also noted the Strasbourg case of A v United Kingdom ((2003) 36 EHRR 51) where a person who had been named in the press was anonymised in Strasbourg no doubt because of the court’s concern not to precipitate further intrusion and harassment.

Finally, the Judge turned to “public interest”.  He noted that, because of his conclusion on reasonable expectation of privacy, this strictly speaking did not arise but nevertheless went on to state his finding.  He held that Sir Fred Goodwin and VBN had established a reasonable expectation of privacy in the fact of the relationship he would have held

“that they were not likely to establish that publication of the job description of VBN should be prohibited. In my judgment the position of Sir Fred Goodwin as Chief Executive of RBS is a matter which NGN would be likely to establish in light of the position that it is in the public interest for it to publish”. [132]

This was not because this would lead to the exposure of impropriety or crime but rather because

“it is in the public interest that there should be public discussion of the circumstances in which it is proper for a chief executive (or other person holding public office or exercising official functions) should be able to carry on a sexual relationship with an employee in the same organisation. It is in the public interest that newspapers should be able to report upon cases which raise a question as to what should or should not be a standard in public life. The law, and standards in public life, must develop to meet changing needs. The public interest cannot be confined to exposing matters which are improper only by existing standards and laws, and not by standards as they ought to be, or which people can reasonably contend that they ought to be” [133].

He went on to hold that Sir Fred Goodwin would be likely establish at trial that there was no a breach of the RBS Code and that the relationship did not impact on the financial difficulties of RBS – a suggestion which was described as “most implausible” [134]-[135].

Comment

This is a comprehensive and thorough judgment which nevertheless reaches a surprising conclusion by a novel route.   Under established case law, a misuse of private information claim is approached in two stages:  first the court considers whether there is a “reasonable expectation of privacy” in the information in question and secondly it considers the balance between Article 8 and Article 10, the “public interest” question (McKennitt v Ash [2008] QB 73 [11]).  The Judge departed from this approach in a number of ways.

First, he considered reasonable expectation privacy from a dual perspective: confidentiality and intrusion.  The latter does not concern “information” at all but, rather, the consequences of the publication of information.   It is difficult to see how such consequences can be relevant to the question of whether or not information is private. The degree of intrusion will depend, for example, on the type of newspaper involved: publication in the “Sun” will, other things being equal, be more likely to be intrusive than publication in the “Financial Times”.

Secondly, the “intrusion” analysis is in any event problematic.  It is difficult see why the publication of a name is unacceptably intrusive whilst the publication of a job description (which the Judge said would lead many people to identify VBN) is not.  The decisive factor appears to have been the fact that the job description “is an important feature of the story” [121] – but it is difficult to see how this can be relevant to “reasonable expectation of privacy”.  At best – and the point is itself controversial – it should be considered at the “second”, public interest, stage.

Thirdly, in assessing whether there was a “reasonable expectation of privacy” the Judge took into account factors which, conventionally, belong at the “second stage”.   The “possibility of misunderstandings” about a work relationship and the “extent to which men in positions of power” benefit from relationships are “public interest” considerations.   The Judge’s decision on this point appears to be directly contrary to the recent decision of the Court of Appeal in ETK v News Group Newspapers Ltd ([2011] EWCA Civ 439) – which also involved a “work relationship”.

Fourthly, the judge appears to have resurrected the discredited concept “public figure”: such figures having at the first stage  less privacy rights than others. However under the previous case law everyone is presumed to have equal rights at the first stage.   It is not who someone is but what they do that matters – and this comes into the “second stage”.  If what they do amounts to making false statements as to the public (as in Campbell ) or the misuse of company funds (as in Lord Browne of Madingley) , then the Article 10 rights of the newspaper may be sufficiently powerful to overcome the Article 8 rights in issue.

Finally, the Judge’s conclusions on “public interest” were, at the very least, surprising.  The suggestion that there is a public interest in discussing a person’s private life in order to have a “public discussion of the circumstances in which it is proper for a chief executive” to carry on a sexual relationship [133] is not one which is supported by the authorities.  In the unlikely event that the “Sun” wished to contribute to the debate in question it could do so without “naming names”.   It is difficult to see why the private lives of particular individuals should be exposed to the public simply to illustrate a general point – when it is not credibly suggested that they have been guilty of any wrongdoing.   If public interest is extended to exposing matters which people reasonably contend “ought to be improper” then few areas of private life would be protected from public disclosure.

One final point of interest concerns Mr Justice Tugendhat’s approach to publication on the internet.  Consistently with the recent decisions in the CTB case (CTB v News Group (No.2)  and (No.3))  he held that the fact that something was no longer secret was not, of itself, a reason for discharging an injunction.  As the judge noted, this approach involves the application of conventional principles: the purpose of a privacy injunction is to prevent further misuses of private information and the previous availability of the information to the public is only one factor to be taken into consideration.  An injunction will be granted or continued if it can be effective in preventing continuing “invasions of privacy” by publication of information.